Citation Nr: 0728078
Decision Date: 09/07/07 Archive Date: 09/14/07
DOCKET NO. 06-11 009 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
splenectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The veteran served on active duty from February 1964 to
February 1967.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a December 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied the claim.
For good cause shown, the veteran's appeal has been advanced
on the Board's docket in accord with 38 U.S.C.A. § 7107 and
38 C.F.R. § 20.900(c).
FINDINGS OF FACT
1. All reasonable development and notification necessary for
the equitable disposition of the instant case has been
completed.
2. The veteran underwent surgical procedures at a VA Medical
Center (VAMC) in June 2003. In pertinent part, a gastric
perforation with inflammation of the spleen was discovered,
the perforation was reduced and the spleen was removed.
3. The preponderance of the competent medical evidence is
against a finding that the veteran's splenectomy was the
result from carelessness, negligence, lack of proper skill,
error in judgment, or some other incident of fault on the
part of the VA, or as the result of an event that was not
reasonably foreseeable.
CONCLUSION OF LAW
The criteria for compensation under 38 U.S.C.A. § 1151 for
the veteran's splenectomy are not met. 38 U.S.C.A. §§ 1151,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.361
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes at the outset that VA has an obligation to
notify claimants what information or evidence is needed in
order to substantiate a claim, as well as a duty to assist
claimants by making reasonable efforts to get the evidence
needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002).
The United States Court of Appeals for Veterans Claims
(Court) has also held that adequate notice, as required by 38
U.S.C. § 5103(a), must be provided to a claimant before the
initial unfavorable agency of original jurisdiction decision
on a claim for VA benefits. Pelegrini v. Principi, 18 Vet.
App. 112, 119-20 (2004). In this case, the veteran was
provided with pre-adjudication notice by letters dated in
January 2004, February 2004, and April 2004 - all of which
were clearly prior to the December 2004 rating decision that
is the subject of this appeal. Taken together, these letters
summarized the criteria for establishing the benefit sought
on appeal, informed the veteran of what information and
evidence he must submit, what information and evidence will
be obtained by VA, and indicated the need for the appellant
to advise VA of or to submit any evidence in his possession
that was relevant to the case. As such, this correspondence
fully complied with the notice requirements of 38 U.S.C. §
5103(a) and 38 C.F.R. § 3.159(b), as well as the holding of
Quartuccio, supra.
The Board also notes that it is cognizant of the holding of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), in
which the Court held, in part, that the notice provided to a
claimant should include notice that a disability rating and
an effective date for the award of benefits will be assigned
if service connection is awarded. No such notification
appears to have been sent to the veteran in the instant case.
The Board acknowledges that an error by VA in providing
notice of the information and evidence necessary to
substantiate a claim under 38 U.S.C. § 5103(a) is
presumptively prejudicial and that in such a case the burden
shifts to VA to demonstrate that the error was not
prejudicial to the appellant. See Sanders v. Nicholson, No.
06-7001 (Fed. Cir. May 16, 2007); Simmons v. Nicholson, No.
06-7092 (Fed. Cir. May 16, 2007). However, in this case, it
is unclear whether the holding in Dingess/Hartman is even
applicable as it involves a claim for compensation under 38
U.S.C.A. § 1151, as opposed to a claim of service connection.
Moreover, even if it is applicable, the focus of this case is
whether the veteran is entitled to compensation under
38 U.S.C.A. § 1151, for which, as detailed above, he received
adequate notification. In short, the outcome of this case
does not depend upon the information discussed by the Dingess
holding. Further, for the reasons detailed below the Board
finds that the claim must be denied as the preponderance of
the evidence is unfavorable. As such, no disability rating
and/or effective date is to be assigned or even considered
for this claim. Consequently, the Board concludes that the
veteran has not been prejudiced by this lack of notification
regarding the Court's holding in Dingess/Hartman. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
All the law requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard, supra; Sutton v. Brown, 9 Vet.
App. 553 (1996); see also 38 C.F.R.
§ 20.1102 (harmless error). In view of the foregoing, the
Board finds that the veteran was notified and aware of the
evidence needed to substantiate this claim and the avenues
through which he might obtain such evidence, and of the
allocation of responsibilities between himself and VA in
obtaining such evidence. Accordingly, there is no further
duty to notify.
In addition, the Board finds that the duty to assist has been
satisfied in this case. The Board notes that the veteran and
his representative have had the opportunity to present
evidence and argument in support of this claim. He indicated
on his April 2006 VA Form 9 (Appeal to the Board) that he did
not want a Board hearing in conjunction with this appeal.
Further, pertinent medical records were obtained in
conjunction with this case, and nothing indicates that the
veteran has identified the existence of any relevant evidence
that has not been obtained or requested. Moreover, a VA
medical opinion was obtained regarding this case in November
2004.
The Board notes that the veteran's representative has argued
that the RO should search for and obtain the VA facilities
medical quality assurance records, if any, related to the
claim. The Board notes, however, that the Board or the RO
adjudicators are not at liberty to obtain such records.
Although VA is required under the VCAA to make reasonable
efforts to assist the claimant in obtaining evidence
necessary to substantiate a claim for benefits, and quality
assurance records might contain evidence and conclusions
relevant to a determination under 38 U.S.C.A. § 1151, VA is
not permitted to disclose quality assurance records to the
public except in narrowly-defined circumstances pursuant to
38 U.S.C.A. § 5705. Because records obtained through the
VCAA must be considered in a claim, and records considered in
a claim must be disclosed to claimants under VA regulations
and court case law, it has been determined that Congress
intended the privilege to apply to prevent VA from obtaining
and using these records where doing so would inevitably
entail disclosure. Consequently, for these reasons, the
Board concludes that VA has fulfilled the duty to assist the
appellant in this case.
The Board notes that it has thoroughly reviewed the record in
conjunction with this case. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence submitted by the appellant or on his
behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.
Cir. 2000) (the Board must review the entire record, but does
not have to discuss each piece of evidence). Rather, the
Board's analysis below will focus specifically on what the
evidence shows, or fails to show, on the claim. See
Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting
that the Board must analyze the credibility and probative
value of the evidence, account for the evidence which it
finds to be persuasive or unpersuasive, and provide the
reasons for its rejection of any material evidence favorable
to the claimant).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the benefit of the doubt shall be given to the
claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt
arises regarding service origin, such doubt will be resolved
in favor of the claimant. Reasonable doubt is doubt which
exists because of an approximate balance of positive and
negative evidence which does not satisfactorily prove or
disprove the claim. 38 C.F.R. § 3.102. The question is
whether the evidence supports the claim or is in relative
equipoise, with the claimant prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which event the claim must be denied. See Gilbert
v. Derwinski, 1 Vet. App. 49, 54 (1990).
In this, and in other cases, only independent medical
evidence may be considered to support medical findings. The
Board is not free to substitute its own judgment for that of
such an expert. See Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991). Here, nothing on file shows that the veteran has
the requisite knowledge, skill, experience, training, or
education to render a medical opinion. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his
contentions cannot constitute competent medical evidence.
38 C.F.R. § 3.159(a)(1).
Legal Criteria. Effective October 1, 1997, 38 U.S.C.A. §
1151 was amended by the United States Congress. See § 422(a)
of PL 104-204. The purpose of the amendment was, in effect,
to overrule the United States Supreme Court decision in Brown
v. Gardner, 115 S. Ct. 552 (1994), which held that no showing
of negligence was necessary for recovery under § 1151. In
pertinent part, Section 1151, as amended, reads as follows:
Compensation under this chapter and
dependency and indemnity compensation
under chapter 13 of this title shall be
awarded for a qualifying additional
disability or a qualifying death of a
veteran in the same manner as if such
additional disability or death were
service- connected. For purposes of this
section, a disability or death is a
qualifying additional disability or
qualifying death if the disability or
death was not the result of the veteran's
willful misconduct and-
(1) the disability or death was
caused by hospital care, medical or
surgical treatment, or examination
furnished the veteran under any law
administered by the Secretary,
either by a Department employee or
in a Department facility as defined
in section 1701(3)(A) of this title,
and the proximate cause of the
disability or death was:
(A) carelessness, negligence, lack
of proper skill, error in judgment,
or similar instance of fault on the
part of the Department in furnishing
the hospital care, medical or
surgical treatment, or examination;
or
(B) an event not reasonably
foreseeable.
From the plain language of the statute, it is clear that to
establish entitlement to Section 1151 benefits, these factors
must be shown: (1) Disability/additional disability; (2) that
VA hospitalization, treatment, surgery, examination, or
training was the cause of such disability; and (3) that there
was an element of fault on the part of VA in providing the
treatment, hospitalization, surgery, etc., or that the
disability resulted from an event not reasonably foreseeable.
The regulation implementing 38 U.S.C.A. § 1151, 38 C.F.R. §
3.361, in pertinent part also provides that
(1) Care, treatment, or examination. To
establish that carelessness, negligence,
lack of proper skill, error in judgment,
or similar instance of fault on VA's part
in furnishing hospital care, medical or
surgical treatment, or examination
proximately caused a veteran's additional
disability or death, it must be shown
that the hospital care, medical or
surgical treatment, or examination caused
the veteran's additional disability or
death (as explained in paragraph (c) of
this section); and (i) VA failed to
exercise the degree of care that would be
expected of a reasonable health care
provider . . . .
38 C.F.R. § 3.361(d).
Analysis. In the instant case, the Board finds that the
preponderance of the evidence is against the veteran's claim
of entitlement to compensation under 38 U.S.C.A. § 1151 for
his splenectomy.
The Board acknowledges that the veteran underwent surgical
procedures at a VAMC in June 2003, including coronary artery
bypass surgery. Following this procedure, he developed
atrial fibrillation and then some increasing abdominal pain.
He subsequently underwent exploratory surgery which revealed
a gastric perforation with inflammation of the spleen. The
perforation was reduced and the spleen was removed.
The veteran essentially contends that that the perforation
was caused by the initial surgery he underwent at the VAMC in
June 2003. In support of this claim, he notes that the
surgical report for the exploratory surgery notes, in part,
that the perforation was in an area that could not have been
ulcer based.
The Board does not dispute the surgical report stated that
there seemed to be no ulcer base to the perforation.
Moreover, as detailed below, a November 2004 VA medical
opinion indicates the perforation may have been due to a VA
procedure. However, no competent medical opinion is of
record which supports a finding that the perforation was due
to carelessness, negligence, lack of proper skill, error in
judgment, or some other incident of fault on the part of the
VA, or an event that was not reasonably foreseeable. Such
evidence is necessary to receive compensation under the
current, applicable version of 38 U.S.C.A. § 1151.
The Board further notes that a VA medical opinion was
obtained regarding this case in November 2004 based upon a
complete review of the claims folder. In pertinent part, the
VA clinician noted that the medical records from July 2003
reflected that a Dobbhoff tube was seen outside the confines
of the veteran's stomach. The clinician noted that a
Dobbhoff tube was a soft tube, which was not introduced by
force other than initially through the nose rather than being
swallowed and gradually assumed into the stomach by the
veteran's own peristaltic activity; that only the tip of the
tube was weighted and that was only to allow gravity for the
ascent of the tube with ordinary peristalsis. Moreover, it
was noted that the veteran was quite ill and cachetic
following his coronary artery bypass grafting, which was
coincidental to the complication of gastric perforation.
However, the clinician stated that appropriate measures were
taken immediately on identifying this tube as being outside
the confines of the stomach and the left subphrenic space;
that the veteran ultimately required debridement surgically
and antibiotic therapy to remove the abscess and the infected
spleen; and that the veteran's post-operative clinical state
would be conducive to his having had a gastric perforation
from either erosion from the expected proximity to the
Dobbhoff tube tip or a stress ulcer from cachexia and the
post-operative state in general unrelated to the presence of
the Dobbhoff tube but allowing it to migrate out of the
stomach.
Regardless of the case, the VA clinician stated that the
foregoing would not suggest that the veteran had any improper
or negligent post-operative care as regards the gastric
perforation. The clinician further stated that additional
rationale was the lack of force manually applied to the
Dobbhoff tube, for example, as such would be done with upper
endoscopic procedures or ERCP (endoscopic retrograde
cholangiopancreatography) for example. Therefore, it was the
clinician's medical opinion within a reasonable degree of
medical certainty after reviewing the entirety of the
veteran's records that the Dobbhoff tube migrated out the
confines of the stomach wall by means of local erosion and/or
gastric ulcer, neither of which would be related to improper
or negligent medical care.
In short, the only competent medical opinion of record to
address this case has concluded that the gastric perforation
which resulted in the splenectomy was not the result of
carelessness, negligence, lack of proper skill, error in
judgment, or some other incident of fault on the part of the
VA, nor as the result of an event that was not reasonably
foreseeable. As this opinion is based upon a complete review
of the claims folder, the Board finds that it is based upon
an adequate foundation. Therefore, the Board must conclude
that the preponderance of the evidence is against the
veteran's claim of entitlement to compensation under
38 U.S.C.A. § 1151, and the claim must be denied. Since the
preponderance of the evidence is against the claim, the
benefit of the doubt doctrine is not for application in the
instant case. See generally Gilbert, supra; Ortiz v.
Principi, 274 F.3d 1361 (Fed. Cir. 2001).
ORDER
Entitlement to compensation under 38 U.S.C.A. § 1151 for
splenectomy is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs